Last update: 01.02.2022
IndustryPlus GmbH, Herrnstr. 28, 80539 Munich, Munich District Court HRB 280175 (“IndustryPlus”) operates a platform (“NextFab”) that enables manufacturing operators and machine manufacturers to monitor the condition of machines and to collect and manage related data.
(1) These General Terms and Conditions (GTC) apply to all business relationships between IndustryPlus GmbH (“IndustryPlus”) and its customers (“Customer”). The terms and conditions only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) Service contract law applies to the contractual relationship between the parties, unless otherwise expressly agreed. Unless otherwise agreed, the terms and conditions in the version valid at the time the customer placed the order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts, without having to be referred to them again in each individual case.
(3) These terms and conditions apply exclusively. Divergent, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as their validity has been expressly agreed by IndustryPlus. This consent requirement applies in any case, for example even if IndustryPlus delivers to the customer without reservation in knowledge of the customer's terms and conditions.
(4) Individual agreements made with the customer in individual cases (including ancillary agreements, additions and changes) always take precedence over these terms and conditions. Subject to proof to the contrary, a written contract or written confirmation by IndustryPlus is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications from the customer regarding the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be submitted in writing or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts as to the legitimacy of the declarant, remain unaffected.
(6) All offers from IndustryPlus are subject to change and non-binding. This also applies if catalogues, technical documentation, other product descriptions or documents — including in electronic form — are provided to the customer.
(1) The subject of the contract is the temporary provision by IndustryPlus of the software products defined in more detail below and associated additional services, also defined in more detail below, to the customer for use via a remote data connection for a fee.
(2) IndustryPlus provides the customer with the NextFab software product for retrieval via the Internet for the duration of the contract. NextFab is a platform that
enables manufacturing operators and machine manufacturers to monitor the condition of machines. The scope and range of functions of the software product as well as the technical and organizational requirements for its use (e.g. the required bandwidth of the remote data connection) are defined in more detail at www.nextfab.io/specs (“specifications”). IndustryPlus is setting up the software product on a cloud-based platform that is accessible to customers via the Internet. All other acts of exploitation, in particular rental and distribution in physical or intangible form, the use of the software by and for third parties to an extent beyond sentence 1, are not permitted without the prior written consent of IndustryPlus.
(3) The copyright, patent rights, trademark rights and all other ancillary copyright rights to the software and other objects that IndustryPlus provides or makes available to the customer in the context of contract initiation and execution are exclusively owned by IndustryPlus. Copyright notices, trademarks and product labels may not be deleted, changed or suppressed.
(4) An adjustment or extension of the software product tailored to the specific needs of the customer is not due; however, it can be agreed upon for a fee.
(5) IndustryPlus may update and further develop the software at any time and, in particular, adapt it as a result of a change in legal situation, technical developments or to improve IT security. IndustryPlus will take appropriate account of the customer's legitimate interests and inform the customer of necessary updates in good time. In the event of a significant impairment of the customer's legitimate interests, the customer has a special right of termination.
(6) Unless otherwise agreed, IndustryPlus only owes the provision of user documentation as an online help or PDF user manual. Further documentation, training or instruction services must be agreed and paid in particular.
(7) The customer must be provided with the access data (user names and passwords) required to use the software product. The login data may not be passed on by the customer.
(8) IndustryPlus will regularly carry out maintenance on the software and inform the customer about this in good time. Maintenance is carried out regularly outside the customer's normal business hours, unless maintenance must be carried out at another time due to compelling reasons.
IndustryPlus will set up a support service for customer inquiries about software functions. Requests can be made via email. Requests are processed in the order in which they are received.
(1) The remuneration for the grant of use is based on the current IndustryPlus price list and is understood - unless expressly agreed otherwise - plus the applicable statutory value added tax.
(2) The rent for the respective month is due in advance on the 3rd working day of each month. In the first month of the rental period, the rent is due upon full provision of the software.
(3) The default interest is nine percent (9%) above the current base interest rate.
(1) Depending on the number and type of machines to be monitored by the customer, the use of the NextFab platform requires the procurement of one or more hardware components (NextBox). The use of the NextFab platform in accordance with the contract also requires that IndustryPlus be notified of the type and scope of the data delivered by the respective machine, including the respective data format. The customer is therefore obliged to provide IndustryPlus with the data required for the provision of services, in particular for creating a template. If it is not possible for the customer to provide the data required to create a template, IndustryPlus offers to assist him in this process based on a separate agreement or to determine the data itself for a fee.
(2) The customer must protect and store the access data provided to him against access by third parties in accordance with the state of the art. The customer will ensure that use is only carried out to the extent contractually agreed. Unauthorized access must be reported to IndustryPlus immediately.
(3) It is the customer's responsibility to establish and maintain the necessary remote data connection to use the software product and the associated service offerings. This includes sufficient networking and cabling of the components (machines, NextBox, Internet connection) with each other and with an adequate remote data connection. IndustryPlus offers to advise and support the customer in this regard for a fee on the basis of a separate agreement.
(4) The use of the NextFab platform requires that the hardware and software used by the customer, including workstations, routers, data communication tools, etc., meet the minimum technical requirements for using the software product (see the specifications, available at www.nextfab.io/specs). The customer's IT system configuration required to use the software product is the task of the customer.
(5) The customer is obliged to adequately protect its systems against attacks, malware, viruses or other harmful components and to use state-of-the-art measures (e.g. virus protection programs) for this purpose. The use of the NextFab platform via private devices is prohibited.
(6) The customer is responsible for regularly carrying out appropriate data backups.
(1) The contract period results from the agreements between the parties. Insofar as the parties do not agree on the term, contracts are concluded for an indefinite period of time and can be terminated by either party with a notice period of two weeks to the end of the month.
(2) The right to terminate without notice for good cause remains unaffected.
(3) Ordinary termination can be made via the user account. In any case, the extraordinary termination must be made in writing.
(4) After termination of the contractual relationship, the customer may request that the customer's data stored on IndustryPlus servers be returned no later than 30 days after the end of the contractual relationship. IndustryPlus points out that, after expiry of the aforementioned period, data may be deleted, anonymized or pseudonymized in compliance with data protection regulations.
(1) IndustryPlus guarantees that the contractually agreed quality of the software will be maintained during the contract period and that the use of the software in accordance with the contract does not conflict with the rights of third parties. The licensor will remedy any material and legal defects in the leased property within a reasonable period of time. The licensor also fulfills its obligation to correct the problem by making updates provided with an automatic installation routine available for download on its homepage and by offering the licensee support to solve any installation problems that may arise.
(2) The customer is obliged to immediately report defects in the software to IndustryPlus in writing after they have been discovered. In the case of material defects, this is done with a description of the time at which the defects occurred and the detailed circumstances.
(3) The warranty for only insignificant reductions in the suitability of the service is excluded. Fault-independent liability in accordance with Section 536a (1) BGB for defects that already existed at the time of conclusion of the contract is excluded.
(1) The use of the NextFab platform requires the machines to be monitored to be connected to one or more hardware components (NextBox). IndustryPlus offers to connect the customer's machines with the respective hardware on the basis of a separate agreement for a fee.
(2) IndustryPlus supports the customer in purchasing the necessary hardware from third parties via its own website. For this purpose, the customer can direct purchase inquiries to third-party providers, which IndustryPlus will forward to the respective third party provider. Purchase contracts are concluded between the third party provider and the customer upon confirmation. IndustryPlus supports the customer in processing (forwarding contract declarations, payment processing, delivery), but has no influence on the conclusion itself and in this case does not itself become a party to the corresponding purchase contracts.
(3) Insofar as IndustryPlus itself offers hardware, i.e. acts not only as an agent but as a seller of the hardware, the following applies: The customer must immediately check the goods for completeness, compliance with the delivery documents and the order and for defects and immediately assert any discernible deviations and defects in writing. If a complaint is not made within 4 working days of receipt by the customer, the delivery is considered to be in accordance with the contract, unless the discrepancy was not apparent despite careful examination. Transport damage or shortages that are apparent upon delivery must also be noted on the carrier's receipt in accordance with Section 438 HGB. If the goods are shipped at the customer's request, the risk of accidental loss and accidental deterioration of the goods is transferred to the customer at the time of dispatch.
(4) The customer is aware that IndustryPlus GmbH is not the original supplier/manufacturer of the hardware, even in the cases referred to in paragraph 3. IndustryPlus only acquires these from suppliers/manufacturers for the purpose of reselling. With the sale of the goods (paragraph 3), IndustryPlus assigns all transferable product guarantees, liability relief and compensation claims to the customer. The customer accepts this assignment. The customer should first take action against the supplier/manufacturer on the basis of the assigned claims. IndustryPlus will inform the customer whether claims must be made against him or directly against the supplier/manufacturer and, in the latter case, provide the contact details of the partner company. Should the claims against this be unenforceable, the customer must prove this to IndustryPlus and withdraw the claims to IndustryPlus. In this case, IndustryPlus is liable in accordance with the following paragraphs.
(5) In addition to proof and rescission in accordance with paragraph 4, all warranty rights of the customer against IndustryPlus presuppose that the customer has duly fulfilled its inspection and complaint obligations under paragraph 3.
(6) Claims for defects do not exist in the event of only minor deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear, as in the case of damage arising after the transfer of risk as a result of faulty or negligent treatment, excessive use, unsuitable equipment, or due to special external influences that are not required under the contract. If improper repair work or changes are carried out by the customer or third parties, there are also no claims for defects for this and the resulting consequences.
(7) Claims by the customer due to expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods delivered by IndustryPlus have subsequently been transported to a location other than the customer's branch, unless the shipment is in accordance with their intended use.
(8) Should, despite all care taken, the delivered goods have a defect which was already present at the time of transfer of risk, IndustryPlus will, subject to timely notification of defects, repair the goods or deliver replacement goods at its discretion. IndustryPlus must always be given the opportunity to rectify the situation within a reasonable period of time. Recourse claims remain unaffected by the above provision without limitation. If the subsequent performance fails, the customer may — without prejudice to any claims for compensation — withdraw from the contract or reduce the remuneration.
(1) The NextFab platform is granted free of charge. In this respect, IndustryPlus's liability is based on donation law. IndustryPlus is therefore exclusively liable for intent and gross negligence. In the event of gross negligence, liability for indirect and subsequent damage (in particular business interruptions, production downtime, lost profit and futile expenses) is excluded.
(2) Except in the cases referred to in paragraph 1, IndustryPlus is only liable in accordance with the following provisions in (a) to (e):
(a) IndustryPlus is fully liable for damage caused intentionally or grossly negligently by IndustryPlus, its legal representatives or officers, as well as for damage caused intentionally by other vicarious agents; for gross negligence of other vicarious agents, liability is determined in accordance with the rules for slight negligence set out in (e) below.
(b) IndustryPlus is liable without limitation for damage caused intentionally or negligently as a result of injury to life, limb or health by IndustryPlus, its legal representatives or vicarious agents.
(c) IndustryPlus is liable for damage due to lack of warranted features up to the amount covered by the purpose of the assurance and that was apparent to IndustryPlus when providing the assurance.
(d) IndustryPlus is liable for product liability damage in accordance with the provisions of the Product Liability Act.
(e) IndustryPlus is liable for damages resulting from the breach of cardinal obligations by IndustryPlus, its legal representatives or vicarious agents; cardinal obligations are the essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on whose fulfilment the cooperation partners may rely. If IndustryPlus has slightly negligently breached these cardinal obligations, its liability is limited to the amount that was foreseeable for IndustryPlus at the time of the respective performance.
(f) IndustryPlus is liable for damage resulting from the violation of data protection regulations in accordance with the statutory provisions.
(3) IndustryPlus is only liable for loss of data up to the amount that would have been incurred if the data had been properly and regularly backed up to restore it.
(4) Any further liability on the part of IndustryPlus is fundamentally excluded.
(1) The customer will take appropriate measures to secure the contract software and, if applicable, the login data for online access from access by unauthorized third parties. In particular, all copies of the contract software and access data must be kept in a protected location.
(2) At the customer's request, the customer will enable IndustryPlus to verify the proper use of the contract software, in particular as to whether the customer is using the program qualitatively and quantitatively within the scope of the licenses purchased by him. To this end, the customer will provide IndustryPlus with information, provide access to relevant documents and documents, and enable an audit of the hardware and software environment used by IndustryPlus or an auditing company named by IndustryPlus and acceptable to the buyer. IndustryPlus may carry out the audit itself or have it carried out by third parties bound to secrecy. If the verification shows that the number of licenses purchased is exceeded by more than 5% (five percent) or any other use that is not in accordance with the contract, the buyer bears the costs of the verification, otherwise IndustryPlus bears the costs. All other rights are reserved.
(5) If the customer violates one of the above provisions, all rights of use granted under this contract are immediately ineffective and automatically revert to IndustryPlus. In this case, the customer must immediately and completely discontinue use of the software. We reserve the right to assert any claims for damages.
(6) Both parties agree to comply with all relevant legal provisions. The parties will comply with regulatory instructions. The parties agree to obtain any permits required to provide the services and to carry out notifications to authorities.
(1) The parties acknowledge and agree that each party may receive, come into contact with, become aware of, or develop information, data and/or communications of an economically sensitive, proprietary nature (“Confidential Information”) which, if disclosed, could have adverse effects on the other party (the “Disclosing Party”). Confidential information includes, but is not limited to, this agreement, business, scientific, or technical information about the research, product plans, products, services, operating methods, business plans, technology, ideas, proprietary data, trade secrets, developments, inventions, marketing and regulatory strategies, customer lists and databases, and any other non-public information about the disclosing party.
(2) Each party hereby acknowledges that it will not disclose or use confidential information (except in connection with or expressly permitted by this Agreement) during the term of the Agreement and for two (2) years thereafter. All confidential information remains the property of the disclosing party.
(3) The obligation not to disclose confidential information does not apply to information
(i) which are already known to the party at the time of disclosure or are available without confidentiality restrictions;
(ii) which are already known or available to the public, or which are becoming available to the public, unless such knowledge or availability is the result of an unauthorized disclosure or violation by the party; or
Furthermore, there is no duty of confidentiality vis-à-vis courts and authorities insofar as there is a legal obligation to disclose or the respective information is relevant in civil proceedings between the parties or one of the parties and a third party.
The client must be notified immediately of the release of confidential information. The contractor undertakes to inform the client before disclosing confidential information, unless such notification is not permitted by law.
Upon termination of this Agreement, a party shall promptly return to the disclosing party, upon request, all materials containing confidential information of the disclosing party and prepared by or for the party, including but not limited to documents, records, and other materials in any medium (“retained materials”).
(1) Should personal data be collected as part of the execution of the contract, in particular but not exclusively when using the software product, the parties shall ensure that data protection regulations are complied with.
(2) Personal data is only collected and used to the extent required to execute the contract. Personal data must be processed in accordance with the customer's instructions; as soon as IndustryPlus believes that one of these instructions violates data protection regulations, it must immediately inform the customer of this. The parties agree to the collection and use of such data collected to this extent.
(3) If necessary, the parties will conclude an agreement on order processing in accordance with the requirements of Article 28 GDPR.
(1) If and as long as there is a case of force majeure, the parties are temporarily released from their performance obligations.
(2) Force majeure is an unrelated event brought about from outside by elementary forces of nature or by the actions of third persons, which, according to human insight and experience, is unpredictable, cannot be prevented or neutralized by economically viable means even through the extreme care reasonably expected from the facts and cannot be accepted because of its frequency.
(3) The parties may terminate the contract if a force majeure event lasts longer than three months and an amicable contract adjustment cannot be achieved.
(1) The place of jurisdiction for all possible disputes arising from the business relationship between the customer and the contractor is Munich. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
(2) The relationships between the parties are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.